Bell v. Mason , 10 Vt. 509 ( 1838 )

The opinion of the Court was delivered by

Collamer, J.

The ad damnum usually determines the jurisdiction, unless from the declaration it is certain that the matter in demand exceeds the jurisdiction. In this case there are several counts, which may be for the same subject matter and, from the ad damnum being but one hundred dollars, they must have been intended for the same thing. The justice, therefore, had jurisdiction. This same point was so decided in Richardson v. Denison, 1 Aik. R. 210.

This case was referred, by rule of court, December Term, 1836. What was done at June Term, 1837, does not appear. The report was made and accepted Dec. Term, 1837. It is now objected, that the reference expired at June Term. This court cannot find error unless it appears. We must presume that all is right until the contrary appears. We must, therefore, presume that, at June Term, the cause was continued and the rule enlarged, by the consent of the parties.

It is not necessary in this case, to decide whether an attorney, in all cases or in any possible case, without express authority, can borrow money to prosecute an action, and pledge the credit of the client, and render him responsible. This may be much doubted. If, however, this be true, it is most clear, that if he has such power, he must exercise it in order to bind the client. This case is entirely destitute of such a fact. It does not appear that George M. Mason, the attorney, borrowed this money of the plaintifi, on the credit of the defendant, or that the plaintiff lent it on tire credit of the defendant, or even that the plaintiff knew that the defendant had any interest in the case. The attorney had a lien on the bill of cost, for any necessary advancements by him made, and the case shows clearly that the plaintiff- advanced the money on the credit of the attorney, and at his request, and took from him the order therefor on Edmonds. The plaintiff could undoubtely have recovered this sum of George M. Mason. It was his debt, and of him alone must the plaintiff recover. There is no privity between these parties.

Judgment reversed.

Williams, C. J,, dissenting.